A Colorado baker known for being the target of civil rights lawsuits is challenging a ruling that he violated the state’s anti-discrimination law by refusing to bake a cake celebrating a gender transition, all while the Supreme Court is prepared to hear arguments over a similar dispute this term.
Baker Jack Phillips notably had a partial Supreme Court victory after refusing to bake a cake for a gay couple’s wedding on religious grounds. Now, his attorneys are urging Colorado’s appeals court to overturn the ruling in a separate case brought by a transgender woman last year.
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Phillips received a call at his Denver-based shop in 2017 from Autumn Scardina, who requested a birthday cake with blue frosting on the outside and pink on the inside to celebrate a gender transition. During his trial last year, Phillips testified he is a Christian and did not think someone could change genders as justification for his refusal of business services.
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The conservative Christian legal advocacy group representing Phillips, Alliance Defending Freedom, argues that requiring Phillips to make a cake with a message that goes against his religious beliefs amounts to compelled speech and violates his First Amendment rights, according to attorney Jake Warner.
In the 2021 Colorado Court of Appeals ruling, Judge Timothy Schutz noted that Phillips’s wife initially informed Scardina the bakery could fulfill the request before Scardina clarified the design was meant to celebrate a gender transition.
Scardina explained that the design was intended to be a “reflection” of a “transition from male-to-female,” according to court records.
A lawyer for Scardina argues his client did not ask the shop to endorse the gender transition, rather only to sell Scardina a product that they would ordinarily sell to anyone else.
Outside the courthouse, both parties have spoken about their beliefs on either side of the case. Scardina maintains the lawsuit is about defending the “dignity of LGBTQ Americans and Coloradans and the rule of law.”
From Phillips’s perspective, he sees the case as upholding the rights for people to live according to their consciences “without fear of punishment” by the government.
The Supreme Court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that the commission exercised an anti-religious bias by enforcing its anti-discrimination law against Phillips for his refusal to bake a cake in celebration of a same-sex marriage. But justices did not rule on the outstanding issue of whether a business can cite a sincerely held religious belief as a legitimate reason to refuse service to LGBT people.
That question could be answered when the high court hears arguments and hands back a ruling in the case 303 Creative v. Elenis, an issue that involves a Colorado-based Christian website designer, Lori Smith, who has objected to making a webpage for a same-sex couple’s marriage.
While Smith has also cited her sincere religious beliefs as a reason to object to certain requests, justices agreed only to examine the free speech issue of the case, not the religious component of Smith’s objection.
“[Smith] filed a pre-enforcement challenge, meaning unlike the Masterpiece, there’s not an actual couple here. … She wants a decision saying that she doesn’t have to provide websites for gay couples,” said Amanda Shanor, an assistant professor at the University of Pennsylvania Wharton School who spoke at a Federalist Society event last month.
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Following Phillips’s trial of the lawsuit regarding the transgender client, Denver District Judge A. Bruce Jones rejected his claim that making a cake would constitute compelled speech, saying it was a product sold by a business that could not be withheld from people who have historically been treated unfairly and are protected by Colorado’s anti-discrimination laws.
“Here, the refusal to provide the bakery item is inextricably intertwined with the refusal to recognize Ms. Scardina as a woman,” Jones wrote.
